After reviewing consultation responses, the government has highlighted the difficulty in defining ‘caste’ in legislation and said it will rely on case law to develop naturally to ensure that protection is provided when required.
Over the last few years, there has been significant debate about whether there is suitable legal protection against discrimination because of a person’s origins. A consultation was launched and the government has now published its official response.
What protection does the law provide in regards to caste discrimination?
Employers cannot discriminate on the basis of the ‘protected characteristics’ specified in the Equality Act 2010. These protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
As the law currently stands, caste discrimination is not expressly prohibited under the Equality Act. Employment Tribunals have taken the approach that a claim for discrimination based on caste can proceed under current law as it may fall within the scope of race discrimination. Race covers colour, nationality and ethnic or national origins. However, this will ultimately depend on the individual circumstances of the case and not all victims of caste discrimination will be entitled to a remedy.
What did the government’s consultation seek views on?
Last year, the government conducted a consultation on the issue of caste discrimination and the Equality Act. The consultation invited views from employers, service providers, public authorities and the wider public on two options:
- Banning caste discrimination through developing case law to include caste within the meaning of ‘ethnic origins’, or
- Banning caste discrimination by expressly laying down caste as an aspect of race in the Equality Act. Essentially, it would create a new subsection to go alongside colour, nationality and ethnic and national origins.
What did the government conclude?
Over half of the respondents to the consultation indicated that they agreed with relying on case law.
In its report, the government said that ‘Legislating for caste is an exceptionally controversial issue… Reliance on case-law and the scope for individuals to bring claims of caste discrimination under ‘ethnic origins’ rather than ‘caste’ itself is likely to create less friction between different groups and help community cohesion.’
It continued ‘the inability to define ‘caste’ within the legislation, even if an effective and suitable definition could be agreed on, presented a significant complication to introducing a concept into law that would potentially be open to a variety of interpretations’.